Under the statute governing omitted children, an omitted child will receive an amount equal to what he or she would have received had the testator died intestate. However, the court has the discretion to reduce the amount given to an omitted child, or decide that no amount at all is appropriate, if there is clear and convincing evidence the testator intended to disinherit the child.1
In order to prevent unintentionally disinheriting a child, a testator should always consider updating his or her will after the birth or adoption of a child. When a will provides a gift even for children who were not yet born as of the time the will was executed (for example, a gift to “my descendants“), the testator’s children born after the date the will was executed will not be deemed omitted children under the statute.
A testator can purposely disinherit a child and avoid treatment of the child as an omitted child by showing the intent to disinherit the child in his or her will or by other clear and convincing evidence that the omission was intentional. However, the testator should be aware that an otherwise disinherited child may still be able to receive the testator’s property by petitioning for a family support award. A person who wishes to disinherit his or her child completely, including by preventing an award of family support, should seek the advice of an attorney.